PROCEDURE FOR EXECUTION OF A GARNISHEE ORDER BY A SHERIFF

Author: LegalEase Solutions 

Article 52 of Civil Practice Law and Rules stipulates the procedure for enforcement of Money Judgments.

  • 5232, Levy upon personal property, reads in relevant part:
  1. a) Levy by service of execution. The sheriff or support collection unit designated by the appropriate social services district shall levy upon any interest of the judgment debtor or obligor in personal property not capable of delivery, or upon any debt owed to the judgment debtor or obligor, by serving a copy of the execution upon the garnishee, in the same manner as a summons, except that such service shall not be made by delivery to a person authorized to receive service of summons solely by a designation filed pursuant to a provision of law other than rule 318. In the [fig 1] event the garnishee is the state of New York, such levy shall be made in the same manner as an income execution pursuant to section 5231 of [fig 2] this article. A levy by service of the execution is effective only if, at the time of service, the person served owes a debt to the judgment debtor or obligor or heor she is in the possession or custody of property not capable of delivery in which he or she knows or has reason to believe the judgment debtor or obligor has an interest, or if the judgment creditor or support collection unit has stated in a notice which shall be served with the execution that a specified debt is owed by the person served to the judgment debtor or obligor or that the judgment debtor or obligor has an interest in specified property not capable of delivery in the possession or custody of the person served. All property not capable of delivery in which the judgment debtor or obligor is known or believed to have an interest then in or thereafter coming into the possession or custody of such a person, including any specified in the notice, and all debts of such a person, including any specified in the notice, then due or thereafter coming due to the judgment debtor or obligor, shall be subject to the levy. The person served with the execution shall forthwith transfer all such property, and pay all such debts upon maturity, to the sheriff or to the support collection unit and execute any document necessary to effect the transfer or payment. After such transfer or payment, property coming into the possession or custody of the garnishee, or debt incurred by him, or her shall not be subject to the levy. Until such transfer or payment is made, or until the expiration of ninety days after the service of the execution upon him or her, or of such further time as is provided by any order of the court served upon him or her, whichever event first occurs, the garnishee is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff or the support collection unit, except upon direction of the sheriff or the support collection unit or pursuant to an order of the court. At the expiration of ninety days after a levy is made by service of the execution, or of such further time as the court, upon motion of the judgment creditor or support collection unit has provided, the levy shall be void except as to property or debts which have been transferred or paid to the sheriff or to the support collection unit or as to which a proceeding under sections 5225 or 5227 has been brought. A judgment creditor who, or support collection unit which, has specified personal property or debt to be levied upon in a notice served with an execution shall be liable to the owner of the property or the person to whom the debt is owed, if other than the judgment debtor or obligor, for any damages sustained by reason of the levy.

(b) Levy by seizure. The sheriff or support collection unit of the appropriate social services district shall levy upon any interest of the judgment debtor in personal property capable of delivery by taking the property into [fig 1] custody without interfering with the lawful possession of pledgees and lessees. The sheriff or support collection unit shall forthwith serve a copy of the execution in the manner prescribed by subdivision (a) upon the person from whose possession or custody the property was taken.

(c) Notice to judgment debtor or obligor. Where an execution does not state that a notice in the form presented by subdivision [fig 1] (e) of section fifty-two hundred twenty-two of this chapter has been duly served upon the judgment debtor or obligor within a year, the sheriff or support collection unit shall, not later than four days after service of the execution upon any garnishee, mail by first class mail, or personally deliver, to each judgment debtor or obligor who is a natural person, a copy of the execution together with such notice. The sheriff or support collection unit shall specify on the notice to judgment debtor or obligor the name and address of the judgment creditor or the judgment creditor’s attorney or the support collection unit. The notice shall be mailed to the judgment debtoror obligor at his or her residence address; and in the event such mailing is returned as undeliverable by the post office, or if the residence address of the judgment debtor or obligor is unknown, then to the judgment debtor or obligor in care of the place of employment of the judgment debtor or obligor if known, in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by the return address or otherwise, that the communication is from a sheriff or support collection unit or concerns a debt; or if neither the residence nor the place of employment of the judgment debtor or obligor is known, then to the judgment debtor or obligor at any other known address.

In Kennis v. Sherwood, 82 A.D.2d 847, the Court interpreted §  5232 as follows:

Section 5232 (subd [a]) provides for a levy upon any interest of the judgment debtor in personal property not capable of delivery or upon any debt owed to the judgment debtor. This section applies to bank accounts (see, e.g., Matter of Industrial Comr. of State of N.Y. v Five Corners Tavern, 47 NY2d 639). Pursuant to section 5232 (subd [a]), the levy occurs by service of the execution and the garnishee “shall forthwith transfer all such property  to the sheriff”. The levy is effective only for 90 days from the date of service (extensions are available).  If the garnishee fails or refuses to transfer the property pursuant to section 5232 (subd [a]), the judgment creditor must bring a special proceeding pursuant to CPLR 5225 or 5227 to obtain a court order directing  the transfer within the 90 days to perfect the levy (see Industrial Comr. of State of N.Y. v Five Corners Tavern, supra, p 644; Siegel, New York Practice, §  496, pp 672-674; 6 Weinstein-Korn-Miller, NY Civ Prac, par 5232.13).

Id at 848.

Therefore, a garnishee order against a bank account may be executed by adhering to the procedure set out in Section 5232.

FORM OF RESTRAINING NOTICE:

 

[Title of court and cause] Index No. -1-

Whereas in an action in the [court] between -2— and -3— plaintiffs against -4— defendant, judgment, dated -5—, 19-6-, was entered therein on -7—, 19-8-, in favor of -9— against -10—, for the sum of -11— dollars, and there is now actually due thereon the sum of -12—

NOW TAKE NOTICE, that a judgment debtor served with a restraining notice is forbidden to make or suffer any sale, assignment, transfer or interference with any property in which he has an interest, except upon direction of the sheriff or pursuant to an order of the court, until the judgment is satisfied or vacated. A restraining notice served upon a person other than the judgment debtor is effective only if, at the time of service, he owes a debt to the judgment debtor or he is in the possession or custody of property in which he knows or has reason to believe the judgment debtor has an interest, or if the judgment creditor has stated in the notice that a specified debt is owed by the person served to the judgment debtor or that the judgment debtor has an interest in specified property in the possession or custody of the person served. All property in which the judgment debtor is known or believed to have an interest then in and thereafter coming into the possession or custody of such a person, including any specified in the notice, and all debts of such a person, including any specified in the notice, then due and thereafter coming due to the judgment debtor, shall be subject to the notice. Such a person is forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff, except upon direction of the sheriff or pursuant to an order of the court, until the expiration of one year after the notice is served upon him, or until the judgment is satisfied or vacated, whichever event first occurs. A judgment creditor who has specified personal property or debt in a restraining notice shall be liable to the owner of the property or the person to whom the debt is owed, if other than the judgment debtor, for any damages sustained by reason of the restraint. If a garnishee served with a restraining notice withholds the payment of money belonging or owed to the judgment debtor in an amount equal to twice the amount due on the judgment, the restraining notice is not effective as to other property or money.

TAKE FURTHER NOTICE that disobedience of this restraining notice is punishable as a contempt of court.

Dated -13—

[Signature]

-14———

[Print signer’s name

below signature]

Clerk of -15— Court or

Attorney for judgment creditor

Endorsement

-16———

Attorney for judgment creditor

Office and post office

address -17—

Telephone Number -18-

FORM UNDER SECTION 5232:            

Form

Notice to Garnishee Served With Execution

Notice to garnishee

[Title of court and cause]Index No. -1-

To: -2—

Address: -3—

WHEREAS, it appears that you are indebted to the judgment debtor, above named, or in possession or custody of property not capable of delivery in which the judgment debtor has an interest, including, without limitation, the following specified debt and property: -4—

NOW, THEREFORE YOU ARE REQUIRED by CPLR 5232(a) forthwith to transfer to the sheriff all personal property not capable of delivery in which the judgment debtor is known or believed to have an interest now in or hereafter coming into your possession or custody including any property specified in this notice; and to pay to the sheriff, upon maturity, all debts now due or hereafter coming due from you to the judgment debtor, including any debts specified in this notice; and to execute any documents necessary to effect such transfer or payment;

AND TAKE NOTICE that until such transfer or payment is made or until the expiration of ninety days after the service of this execution upon you or such further time as is provided by any order of the court served upon you whichever event first occurs, you are forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the sheriff, except upon direction of the sheriff or pursuant to an order of the court;

AND TAKE FURTHER NOTICE THAT at the expiration of ninety days after a levy is made by service of this execution, or of such further time as the court upon motion of the judgment creditor has provided, this levy shall be void except as to property or debts which have been transferred or paid to the sheriff or as to which a proceeding under sections 5225 or 5227 of the Civil Practice Law and Rules has been brought.